FEDERALLY REGULATED EMPLOYEES AND COVID-19: WHAT HAPPENS TO FLIGHT ATTENDANTS, BANKERS OR CROSS-BORDER TRUCKERS IF THEY GET CORONAVIRUS?

Federally regulated employees with COVID-19 may be wondering
what their employment law rights are. It’s easy for federally regulated workers
to get lost in the mix. The vast majority of employees are provincially
regulated – and there’s been a lot of press around provincially regulated
Ontario employees’ new rights in light of the coronavirus pandemic. However, a
small but no less important segment of Ontario workers fall under federal
regulation instead of provincial regulation. This means different laws apply to
their work, including different rights in responding to COVID-19. The laws
affecting federally regulated employees were amended yesterday (24 March 2020).

CAUTION: LAWS ARE CHANGING QUICKLY IN RESPONSE TO COVID-19. THIS BLOG
POST MAY NOT CONTAIN THE MOST CURRENT INFORMATION AND IS NO SUBSTITUTE FOR
LEGAL ADVICE. CONSULT YOUR UNION OR YOUR LAWYER IF YOU HAVE SPECIFIC CONCERNS
ABOUT YOUR RIGHTS AT WORK.

Who are federally regulated employees?

You are likely federally regulated if you work in one of the
following industries:

Banks

Marine shipping, ferry and port services

Air transportation, including airports,
aerodromes and airlines

Railway and road transportation that involves
crossing provincial or international borders

Canals, pipelines, tunnels and bridges (crossing
provincial borders)

Telephone, telegraph and cable systems

Radio and television broadcasting

Grain elevators, feed and seed mills

Uranium mining and processing

Businesses dealing with the protection of
fisheries as a natural resource

Many First Nation activities

Most federal crown corporations

Private businesses necessary to the operation of
a federal act

However, there are exceptions and sometimes it’s not that
obvious what industry you work in. For example, if you work for an air
ambulance provider do you work in the air transportation industry or the health
care industry? If you work in an insurance office owned by a bank, are you in
the insurance industry or the banking industry? If you’re unsure, you should
contact your union or an employment lawyer to get some advice.

What laws cover federally regulated employees who miss
work because of COVID-19?

For most workers in Ontario, the provincial Employment
Standards Act,Occupational Health and Safety Act, Labour Relations Act
and Human Rights Code work togetherto set their minimum rights
at work. Ontario workplaces are also affected by the Declaration of Emergency
and Emergency Orders made by Premier Ford this month. If you’re provincially
regulated, please check out our Coronavirus
FAQ Post.

For federally regulated employees, the federal Canada Labour Code and the Canadian Human Rights Act provide minimum standards for everything from minimum wage and sick leave to the refusal of unsafe work to non-discrimination on the basis of disability or parental status. Bill C-13 amendes the Canada Labour Code in response to the COVID-19 pandemic.

Federally regulated employees get up to 5 days of “personal
leave” each year. This can be used for things like a personal illness, to care
for a family member, to attend to their child’s education, or to address other urgent
matters. Employees with at least 3 months of service are entitled to have the
first 3 of these personal leave days paid at their regular rate for their
normal hours of work. An employee can be asked to provide documentation to support
their time off. This may be a good fit for employees WHO ARE home with children
because of school cancellations or for the first few days of leave due to COVID-19
illness or quarantine.

Federally regulated employees’ minimum rights include up to 17
weeks of unpaid leave for personal illness. Federally regulated employees who
need a medical leave of absence should give written notice to their employer as
soon as possible and should tell their employer how long they expect to be off,
if they can do so. Any pension, health or disability benefits should continue
while the employee is off work, but if an employee contributed to these benefits
on their paycheque before their leave, they still need to do so. Federally
regulated employees may have additional rights if their illness is
work-related. This leave may be appropriate for employees who contract COVID-19.

Previously, employees could be asked to provide a medical
certificate from a health care practitioner certifying they are incapable of
work if they needed more than 3 days off. Yesterday’s amendments eliminate that
obligation.

What if I’m self-isolating?

Yesterday’s amendments to the Canada Labour Code
gives eligible employees who are quarantined access to 16 weeks of medical
leave, too. In other words, you don’t have to actually be sick to get medical
leave. Quarantined people (such as those exposed to COVID-19 or who recently
travelled) who are not sick can access unpaid leave.

What if I’m healthy but I’m home with my children because
of COVID-19 school closures?

Other federally regulated employees affected by COVID-19 can
also access an unpaid leave of up to 6 weeks. To access this leave, the
employee needs to give notice to their employer of the reason for their leave
and how long they expect it to last. They may be asked to provide a written
declaration in support of their leave. Unlike the law for provincially
regulated employees, the federal rules don’t specifically mention childcare;
However, employees whom with childcare needs arising from daycare and school
closures may be able to access this leave. We’ll be monitoring how this
provision is understood by lawyers, judges and politicians. As with all leaves,
if you’re unsure if you’re covered you should seek legal advice.

What are my rights if a family member gets sick with
COVID-19?

While we hope that none of our readers experience serious
family illness due to the coronavirus, federally regulated employees may be
able to access additional leave in those circumstances.

Federally regulated employees who need to care for a close
family member who has a serious medical condition with a significant risk of
death can take up to 28 weeks of unpaid leave to care for that person.

Federally regulated employees who need to provide care to a
critically ill member of their immediate family can access an unpaid leave of
absence of up to 37 weeks if the sick person is their child or 17 weeks if the
sick person is an adult.

Normally, they could be asked to provide a medical
certificate confirming that their family member is critically ill or have a
serious medical condition in order to take these leaves. Yesterday’s amendments
eliminate this requirement.

What if I don’t fall into one of these categories?

In addition to the minimum standards set by the Canada
Labour Code, federally regulated employees may have additional rights under
their employment contract, collective agreement or employer’s policies. If you’re
unsure what rights you have, you should contact your union or an employment lawyer.

Federally regulated employees with disability-related needs
that affect their ability to work during the COVID-19 pandemic or who have new
childcare (or elder care) obligations because of the coronavirus may also have
rights under the Canadian Human Rights Act. The right not to be
discriminated on the basis of disability or parental status under the Canada Human
Rights Act has been interpreted to require employers to reasonably
accommodate disability-related or parenting needs up to the point of undue
hardship. You can find out more about parental status accommodation here
or here.
Every disability- or parental-status accommodation case is different, so if you
have concerns you should contact your union or an employment lawyer for advice
specific to your situation.

What about government employees?

Federally regulated employees of the Government of Canada
may be subject to additional directives not covered in this blog post. They can
find more information here.

What if my employer closes or lays people off because of
COVID-19?

No law prevents an employer from terminating an employee’s employment or laying them off for business reasons. You may be affected by layoffs even if you are on a job-protected leave. You may also be terminated for cause if you’ve committed misconduct. These rights prevent you from being discriminated against or losing your job because you took a protected-leave.

Federally regulated employees also have different minimum rights
upon termination than provincially regulated employees, though that may be a
topic for a future blog post – and these rights may be affected by collective
agreements, employment contracts, or the common law. Here’s a primer
on severance packages that you can check out.

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informational purposes only. Results of cases described in these posts may not
be typical and are not guaranteed. The accuracy of Moly Law Blog posts is not
guaranteed, and laws may change from time to time. If you would like legal
advice or have questions about your particular workplace problems, please
contact a lawyer. Click
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